Flying Horse v. Hansen

United States District Court, D. South Dakota, Southern Division

July 13, 2017

JOSEPH R. FLYING HORSE, Plaintiff,v.JAMES HANSEN, Parole Agent, Sued in his Official and Individual Capacities; DOUG CLARK, Supervising Parole Agent, Sued in his Official and Individual Capacities; KRISTA BAST, Manager, Sued in her Official and Individual Capacities; SETH HUGHES, Unit Coordinator, Sued in his Official and Individual Capacities; DARIN YOUNG, Warden, of the South Dakota State Penitentiary, Sued in his Official and Individual Capacities; DENNY KAEMINGK, Secretary of Corrections, Sued in his Official and Individual Capacities; MIRANDA WARD, SDSP Manager, Sued in her Official and Individual Capacities; RILEY DEGROOT, SDSP Manager, Sued in his Official and Individual Capacities; TROY PONTO, SDSP Associate Warden, Sued in his Official and Individual Capacities; DARIK BEIBER, SDSP Unit Manager, Sued in his Official and Individual Capacities; VAL MCGOVERN, Board Staff, Sued in her Official and Individual Capacities; STACY COLE, Board Staff, Sued in her Official and Individual Capacities; KAYLA STUCKY, Board Staff, Sued in his Official and Individual Capacities; ASHLEY MCDONALD, DOC Attorney, Sued in his Official and Individual Capacities; PENNINGTON COUNTY, Respondeat Superior, for Pennington County State's Attorney Office; SOUTH DAKOTA DEPARTMENT OF CORRECTIONS; SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Defendants.

ORDER DISMISSING COMPLAINT IN PART AND DIRECTING
SERVICE

KAREN
E. SCHREIER, UNITED STATES DISTRICT JUDGE

INTRODUCTION

Plaintiff,
Joseph R. Flying Horse, is an inmate at the South Dakota
State Penitentiary in Sioux Falls. Flying Horse filed an
amended complaint, arguing that defendants violated his
constitutional rights. Docket 9. For the following reasons,
the court dismisses Flying Horse's amended complaint in
part and directs service.

On
November 7, 2016, Flying Horse filed an amended complaint
under 42 U.S.C. § 1983, raising a number of claims that
defendants violated his constitutional rights in connection
to his detention while on parole. Docket 9. The court
screened Flying Horse's amended complaint under 28 U.S.C.
§ 1915A, found his claims barred by Heck v.
Humphrey, 512 U.S. 477 (1994), and dismissed his
complaint. Docket 14. Flying Horse appealed. Docket 18.

The
Eighth Circuit Court of Appeals reversed in part, affirmed in
part, and remanded the case to this court for further
proceedings. Docket 25. The Eighth Circuit found that to the
extent Flying Horse sought release from confinement, he must
seek habeas relief, and to the extent he sought damages for
his confinement after his parole was revoked, his claims were
barred by Heck. Id. at 2-3. But the Eighth
Circuit found that to the extent Flying Horse sought damages
for the time period between when his parole detainer expired
and when his parole was revoked, Heck did not bar
his claims. Id. at 3. Therefore, the Eighth Circuit
remanded the case to this court. Id. Because the
court has not screened Flying Horse's claims that are not
Heck barred on the merits, his amended complaint
must be screened again under § 1915A.

A
complaint “does not need detailed factual allegations .
. . [but] requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). “If a plaintiff cannot make the
requisite showing, dismissal is appropriate.”
Abdullah v. Minnesota, 261 F. App'x 926, 927
(8th Cir. 2008); Beavers v. Lockhart, 755 F.2d 657,
663 (8th Cir. 1985). Under 28 U.S.C. § 1915A, the court
must screen prisoner complaints and dismiss them if they are
“(1) frivolous, malicious, or fail[] to state a claim
upon which relief may be granted; or (2) seek[] monetary
relief from a defendant who is immune from such
relief.” 1915A(b).

DISCUSSION

Flying
Horse raises claims under the First, Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendments. Docket 9 at 36-38. He also
claims that his rights under the Ex Post Facto Clause were
violated. Id. at 38. Finally, he claims that these
violations caused him a “loss of consortium with his
family and work, ” caused him mental anguish, caused
him emotional distress, and a “loss of life[.]”
Id. at 38-39. He claims that all of the defendants
individually and collectively violated his rights in each of
his claims. Id. at 36-39.

I.
Unlawful Detainment and Illegal Confinement

The
majority of Flying Horse's allegations concern the time
period between when his parole detainer expired and when his
parole was revoked. He was incarcerated throughout this time.
Flying Horse claims that this incarceration violated his
rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendments.

A.
Fourteenth Amendment

A
parolee has a liberty interest in his conditional freedom
that is “within the protection of the Fourteenth
Amendment.” Morrissey v. Brewer, 408 U.S. 471,
484 (1972). Flying Horse alleges that defendants violated his
rights by illegally detaining him. He alleges that when his
parole detainer expired, he was not released. He was told
that he was being held due to pending charges, but when he
received his state records, they showed that he had no
charges pending. Flying Horse argues that defendants, while
working for the parole board or the Department of
Corrections, detained him without a parole detainer, without
pending charges, and without revoking his parole. Therefore,
Flying Horse states a claim under the Fourteenth Amendment.

B.
First Amendment Retaliation

Flying
Horse alleges that defendants violated his rights under the
First Amendment by retaliating against him. To state a claim
for retaliation in violation of the First Amendment, Flying
Horse “must ‘show (1) he engaged in a protected
activity, (2) the government official took adverse action
against him that would chill a person of ordinary firmness
from continuing in the activity, and (3) the adverse action
was motivated at least in part by the exercise of the
protected activity.' ” Spencer v. Jackson Cty.
Mo., 738 F.3d 907, 911 (8th Cir. 2013) (citing
Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir.
2004)).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Flying
Horse alleges that he went to trial in his criminal case and
that he filed this civil case against defendants. Both the
filing of an inmate lawsuit and presenting a defense in a
criminal trial are protected activities. Lewis v.
Jacks, 486 F.3d 1025, 1029 (8th Cir. 2007); United
States v. Petters, 663 F.3d 375, 381 (8th Cir. 2011).
These actions would chill a person of ordinary firmness from
continuing in the protected activity, and Flying Horse
alleges that all of the actions defendants allegedly took
were in ...

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